Citation Nr: 1302531
Decision Date: 01/23/13 Archive Date: 01/31/13
DOCKET NO. 06-03 779A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUE
Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Peters, Associate Counsel
INTRODUCTION
The Veteran had active duty service from March 1971 to December 1972, including from August 1971 to April 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening a claim of service connection for PTSD. The Veteran timely appealed that decision.
This case was last before the Board in June 2010 when it was reopened and remanded for further development at that time. That development having been completed, the case has been returned to the Board at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Review of the claims file demonstrates that the Veteran served in the Republic of Vietnam from August 1971 to April 1972. The Board notes that the Veteran's noted medical history indicates that on the second day of his deployment to Vietnam he began using heroin and continued to use that substance throughout the rest of his period of service and after service-it also appears that the Veteran was twice sent to a hospital during service for detoxification secondary to his use of substances and alcohol while in the Republic of Vietnam.
Also, a review of the Veteran's VA and private treatment records in the claims file since 1990 when he began applying for benefits demonstrates numerous inpatient treatments at VA in order to detoxify after use of substances and alcohol. Those records variously reveal that the Veteran was diagnosed with PTSD, mood disorders, polysubstance abuse including heroin, cocaine, crack cocaine and marijuana, as well as alcohol dependence. Thus, the Board concedes that the Veteran has a current diagnosis of a psychiatric disorder and possibly PTSD.
With regards to in-service stressors, the Board notes that the Veteran has indicated that he witnessed a member of his unit get killed (Bill Barker); that he himself killed a Vietnamese child when the child attempted to steal his gun; and, that he witnessed combat as a door gunner during several missions. He also indicated that he would pick up dead bodies and transport them back in body bags, sometimes three to four days after they had been killed.
The Veteran's Form DD-214 demonstrates that he was a petrol transport specialist assigned to the 48th Assault Helicopter Company while in the Republic of Vietnam.
In light of the Veteran's statements, the Board finds that a remand is necessary at this time in order to attempt to corroborate whether the Veteran served with a Bill Barker and whether such individual was assigned to the Veteran's unit and was killed in action or otherwise expired during the Veteran's period of service in the Republic of Vietnam. See 38 C.F.R. § 3.159(c) (2012).
At this time, there is no corroboration that the Veteran was engaged in combat with the enemy. The Board does not find that the Veteran's lay testimony that he was a door gunner to be credible, particularly in light of his DD-214 military occupational specialty. However, the Board does find that the Veteran is credible when he states that he would have witnessed dead bodies and possibly accidentally killed a child when he attempted to steal the Veteran's gun. Also, the Board finds that the Veteran had a fear of hostile military activity during his period of service in the Republic of Vietnam, which would have involved routine guard duty.
Accordingly, the Board finds that a VA examination should be afforded to the Veteran on remand in order to identify the exact nature of his psychiatric disorder and whether such began in or is otherwise related to the Veteran's military service. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006).
In that examination, the VA examiner is asked to specifically address the Court Martial documents in the claims file which demonstrate that the Veteran returned from Vietnam and then found out that his friend was killed in action. There is documentation that the Bruce Kline was killed in action following the Veteran's return from the Republic of Vietnam; that information demonstrates that the Veteran and Bruce Kline were both assigned to 1st Aviation Brigade and that Bruce Kline died as a result of a helicopter crash. The Board finds the Veteran's statements that he knew Bruce Kline to be credible. Thus, while not necessarily witnessing the death, a stressor in this case is posthumously finding out that one of his friends from in-theater died several days after he left to come back to the United States. Moreover, from the Court Martial proceedings it appears that the Veteran was receiving psychiatric treatment in between two periods of absence without leave (AWOL) status, during which he expressed wanting to get out of the Army after learning of the death of his friend and that he was willing to do anything he could to get out.
Consequently, the VA examiner should specifically address whether such psychiatric symptomatology demonstrated just prior to the Veteran's eventual discharge from service were initial manifestations of his current psychiatric disorder, to include PTSD, and whether such symptomatology has been chronic and continuous since that time such that those initial manifestations could be considered onset of the psychiatric disorder which would eventually be diagnosed as PTSD by later treatment providers.
The Board additionally notes that currently the Veteran is shown to be considered incompetent by VA and that he has a fiduciary. It further appears that his current whereabouts are unknown. For purposes of the examination, every attempt should be made to locate the Veteran and schedule him for an examination; such should be done in conjunction with the Veteran's assigned fiduciary in this matter. However, if such cannot be accomplished, the assigned VA examiner should review the claims file and answer the questions presented to the best of his/her ability.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to identify any VA or private treatment or evaluation that he may have received for his claimed psychiatric disorder, which are not currently of record. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a formal finding of unavailability and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.
2. Additionally, attempt to obtain any information from the Veteran regarding his in-service stressors, which are not already of record. The Veteran should provide the name, rank, places and exact dates-to the best of his ability-of any person killed or any other stressful event during service.
3. Investigate through official sources, including the Joint Service Records Research Center (JSRRC) if appropriate, any above noted stressor, as well as whether the Veteran served with a Bill Barker while he was the Republic of Vietnam and whether such a person died while the Veteran was with him in the Republic of Vietnam. If enough information does not exist in order to corroborate any non-combat stressor, such should be noted in a formal finding of unavailability and associated with the claims file; the Veteran should also be notified.
4. Schedule the Veteran for a VA psychiatric examination to determine whether any current psychiatric disorder is related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail.
Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, including depression or a mood disorder; the examiner should also specifically determine whether the Veteran meets the diagnostic criteria for PTSD under the DSM-IV as noted by 38 C.F.R. § 4.125.
Next, the examiner should opine as to the following:
(a) Only if PTSD is diagnosed, the examiner should opine whether the Veteran's PTSD is more likely, less likely or at least as likely as not (50 percent probability or greater) began in or was caused by his military service, to include his period in the Republic of Vietnam. The examiner should specifically discuss the Veteran's credible fear of hostile military activity as based on the Veteran's duty assignment in the Republic of Vietnam to include as a guard and picking up dead bodies. The examiner should also discuss the Veteran's noted accidental killing of a Vietnamese child.
The examiner should only discuss the Veteran's lay evidence regarding being in combat if such is corroborated by the development ordered in the above remand instructions.
(b) For any other diagnosed psychiatric disorder, including a mood disorder or depression, the examiner is asked to opine whether such diagnosed psychiatric disorder more likely, less likely or at least as likely as not (50 percent probability or greater) began in or is the result of military service, to include his service in the Republic of Vietnam.
(c) The examiner should also specifically discuss whether the noted psychiatric treatment and AWOL instances after finding out his friend in Vietnam died after he left Vietnam were initial manifestations of any currently diagnosed psychiatric disorder, to include PTSD, and should further consider any lay evidence regarding continuity of symptomatology since discharge from service.
All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.
5. Following the above development, the originating agency should review the claims file and readjudicate the Veteran's claim of service connection for a psychiatric disorder, to include PTSD. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
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action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).